Declaration of Restrictions & Covenants, Easement

EPA Region 5 Records Ctr.

287970 OFFICE OF COUNTY RECORDER WADENA COUNTY MINNESOTA I hereby certify that this instrument #___ was filed/recorded in this office for record on the i &i day of _ VovreMAJU/i 2007 at 1:3.0 am@jg) Soledad Henriksen, County Recorder y. <^^rfp^LJSPM/lA-tN^,V\—COMPARED recording fee - well certificate SCANNED

DECLARATION OF RESTRICTIONS AND COVENANTS, EASEMENT, AND AFFIDAVIT CONCERNING REAL PROPERTY CONTAMINATED WITH HAZARDOUS SUBSTANCES

THIS DECLARATION OF RESTRICTIONS AND COVENANTS, EASEMENT, AND AFFIDAVIT ("Declaration") is made by Hazel V. Ritari, ("Owner"). The facts stated herein are stated under oath by Hazel V. Ritari and are intended to fulfill the disclosure requirements of Minn. Stat. §115B.16, subd. 2 (2002).

WITNESSETH:

WHEREAS, Hazel V. Ritari is the fee owner of certain real property located at 16236 2'00th Street, Sebeka, Minnesota, in Wadena County, Minnesota, as described herein (the "Property"); and

WHEREAS, a portion of the Property was the Site of release(s) or threatened release(s.) of certain hazardous substances or pollutants and contaminants, known as the Ritari Post and Pole Superfund Site ("Site"); and

WHEREAS, the Owner is the widow of Melvin RitarL, the former owner and operator of the post and pole treating facility located on the Site, known as Ritari Post and Pole Company; and

WHEREAS, the MPCA inspected the facility in 1976, noting improper storage and disposal of sludge wastes. Between 1976 and 1980, residential water supply wells in the area and packaged pork samples from neighboring properties were sampled and analyzed for phenols. Pentachlorophenol ("PCP") was detected in a water sample from the neighboring well and in the meat from the packaged pork samples analyzed by the Minnesota Department of Agriculture ("MDA"); and WHEREAS, from 1955 to 1959, a portion of the Property was used for the treatment of wood fencing and building products using creosote. From 1959 to 1979, oil-based PCP was used lor treatment, but the operation was converted to water-based PCP in 1979 and used water-based PCP until 1991; and

WHEREAS, as a result of the operations at the Site, soil and ground water were contaminated by poJyaromatic hydrocarbons ("PAH"), pentachlorophenol ("PCP"), dioxins and furans ("dioxins") (collectively known as the "contaminants of concern"). The contamination originated from drippings off the recently treated products and from sludge that was drained out to a drying area; and

WHEREAS, the Site was listed on the federal National Priority List ("NPL") in July 1987 and the State of Minnesota Permanent List of Priorities ("PLP") in October 1984; and

WHEREAS, in an effort to comply with MPCA direction from 1976 through 1983, pursuant MPCA authority under Minn. Stat. §§ 115 and 116 regulating pollution of air, water and solid waste, Melvin Ritari replaced a neighbor's well in 1980, and conducted a portion of the investigative work; and

WHEREAS, pursuant to the Minnesota Environmental Response and Liability Act O'MERLA"), Minn. Stat. §§ 115B.01-.24 (2002), and the federal Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), as amended, 42 USC § 9601 (1980) el s^., the Minnesota Pollution Control Agency ("MPCA"): issued a Request for Response Action ('LRFRA") on February 25, 1986 to Glenn Ritari, the then-current operator of the facility: issued a Determination of Inadequate Response on April 22, 1986 stating the responsible party failed to comply with the terms and conditions of the RFRA in a timely manner; obtained federal funding; investigated, remediated, and is conducting operation and maintenance at the Site; and

WHEREAS, from 1980 to 1992, the MPCA conducted a Remedial Investigation ("RI"), and installed 26 monitoring wells/piezometers to detect the magnitude and extent of contamination in soils and water, determine aquifer characteristics, and assess the plume stability; and

WHEREAS, the MPCA issued a Remedial Investigation Report ("RI Report") dated L>ecember 11, 1992, indicating the highest concentration of contaminants of concern were detected near the areas where the wood products and been treated and stored. Up to 12,000 mg/kg PCP and 36 ug/kg dioxin equivalents were observed in surface soils, and up to 970 mg/kg PCP and 25 ug/kg dioxin equivalents were observed in the subsurface soils. PCP and dioxin were detected in the upper sand/outwash aquifer. Contaminant levels appeared to decrease vertically within the upper aquifer. No indication of contamination was observed for the lower sand and gravel aquifer geologic unit. Ground water contaminant levels near the wood treatment area ranged from 88 to 1,800 milligrams per liter (mg/L) for PCP and 56 to 1,640 nanograms per liter (ng/L) for dioxins. The extent of the PCP and dioxins contamination seemed to be limited to the Property affecting soil, ground water and some business buildings; and WHEREAS, a Record of Decision ("ROD") was executed on June 30, 1994, setting forth the remedial actions to be taken at the Site. An Explanation of Significant Difference ("ESD") was executed on July 2, 1999, providing the rationale for modification of the remedial action set forth in the ROD; and

WHEREAS, the First Five-Year Review Report for the Site dated September 29, 2003, included the following response actions:

1. Removal and disposal of 39 drums of spent wood treating solution in 1997 by the United States Environmental Protection Agency ("U.S. EPA"); 2. Implementation of US EPA - and MPCA-funded ground water remedial actions, institutional controls, private water supply replacement, monitoring, and a contingency plan; and 3. Implementation of the EPA- and MPCA-funded soil remedial actions in 2001, including excavation of contaminated soils down to the water table, cleansing of buildings on the Property, and the consolidation of contaminated soil and materials under a RCRA-compliant cap ('capped hazardous waste cell"); and

WHEREAS, the Remedial Action Completion Report describing the cleanup pursuant to the ROD and ESD, including excavations, construction of the capped hazardous waste cell, and operation and maintenance requirements, was approved with modifications by the MPCA, with E1PA concurrence, on September 25, 2002; and

WHEREAS, because contamination remains at the site above levels that allow for unlimited use and unrestricted exposure, five-year reviews will be conducted to assure the remedy remains protective. The next five-year review is scheduled for September 30, 2008; and

WHEREAS, the capped hazardous waste cell and some residual PCP and dioxins contamination remain in the ground water and in the soils on the Site, described on the Site maps attached hereto as Attachments 1 and 2 and herein incorporated by reference, within the south one-half of the 40 acres described as follows:

The southeast quarter of the southwest quarter of Section 19 Township 137 N Range 34 W, in Meadow Township, Wadena County, Minnesota.

WHEREAS, the PCP may degrade under certain conditions; the dioxins are not likely to degrade. Known contamination in the ground water above the drinking water health risk levels exists on the Property, and contamination of a residential well to the east of the Property suggests the ground water contamination may extend, or may have extended in the past, off-Site to the east. Exact dimensions change with time; Attachment 1 illustrates the known extent and magnitude of ground water contamination with solid lines, and the estimated potential area has dotted lines. Some known soil contamination above health risk levels, in several specific areas and in areas below the clean fill in excavated areas, are located within the south one-half of the 43 acres described above as shown in Attachment 2. The capped hazardous waste cell contains highly contaminated soils and debris is also shown on Attachment 2. East and west of the known areas, low-level contamination may also exist in the surface soils below health risk levels effective at the time of the cleanup decision. Monitoring wells and fencing are shown on the Attachments. Detailed information of the current conditions including the monitoring wells, capped hazardous waste cell, and other remedial actions are included in the MPCA's Five Year Review Report, dated September 29, 2003, and in subsequent MPCA monitoring reports; and

WHEREAS, residual contamination levels remain at the Site; protectiveness of human health or welfare or the environment is achieved by the combination of response actions and institutional controls;, as set forth in the ROD and ESD; and

WHEREAS, protectiveness of the remedial action is assured by regular maintenance of the cap on the hazardous waste cell, by periodic evaluations of site conditions against reviews of new information about risk, and by notice to potential buyers and users of the site through the Declaration of Restrictions and Covenants, Easement, and Affidavit Concerning Real Property Contaminated With Hazardous Substances, which shall be recorded at the Wadena County Recorder's Office and commits current and future owners to the use Restrictions herein; and

WHEREAS, if ground water monitoring demonstrates that contaminated ground water above the federal Maximum Contaminant Levels will move beyond the Property boundary, the affected ground water will require implementation of the contingency remedy of containment and treatment set forth in the ROD; and

WHEREAS, pumping in the north half of the Property may draw contamination from the south half of the Property to the north half;

WHEREAS, the MPCA has the authority to acquire an interest in real property necessary for environmental response actions under Minn. Stat. §115B.17, subd. 15; and

WHEREAS, Owner has agreed to place a Declaration of Restrictions and Covenants, Easement, and Affidavit Concerning Real Property Contaminated with Hazardous Substances on the Property for the purpose of protecting public health or welfare or the environment; and

WHEREAS, Owner has agreed to convey to the STATE OF MINNESOTA an Easement to certain described parcels of property that Owner owns and which are hereinafter described.

NOW, THEREFORE, the Owner makes the following declarations as to limitations, restrictions and uses to which the Restricted Area and the Well Restriction Area of the Property may be put, and specifies that such declarations shall constitute covenants to run with the Property as provided by law and shall be binding on Owner, its successors or assigns, all present or future owners of the Property, and all parties who now or hereafter have or hold any right, title or interest in the Property; the Owner for valuable consideration does hereby grant a perpetual easement to the STATE OF MINNESOTA acting through its Commissioner of the Minnesota Pollution Control Agency for the purposes and under the terms and conditions as hereinafter described in the following property situated at 16236 300th Street, Sebeka, Minnesota in the County of Wadena and the State of Minnesota, consisting of approximately forty (40) acres, to- wit:

The southeast quarter of the southwest quarter of Section 19 Township 137 N Range 34 W, in Meadow Township, Wadena County, Minnesota.

1. Definitions:

a. As used herein, "Owner" means Hazel V. Ritari, who is the grantor of the rights and covenants created in this Declaration, and includes Owner's successors and assigns, and all present and future owners of the Property;

b. As used herein, "Commissioner" means the Commissioner of the MPCA, her successors, or the Commissioner's designee.

c. As used herein, "Property" means the real property owned by Hazel V. Ritari located at 16236 300lh Street, Sebeka, Minnesota, in Wadena County, Minnesota, shown on Attachment 1 hereto and legally described as follows:

The southeast quarter of the southwest quarter of Section 19 Township 137 N Range 34 W in Meadow Township, Wadena County, Minnesota.

d. As used herein, "Restricted Area" means the following described portion of the Property which includes the hazardous waste cell, all of the ground water at any depth, and contaminated soils depicted and identified on Attachments 1 and 2, as follows:

The south one-half of the southeast quarter of the southwest quarter of Section 19 Township 137 N Range 34 W in Meadow Township, Wadena County, Minnesota.

e. As used herein, "Well Restriction Area" means the following described portion of the Property which is not known to have contaminated soil or ground water but which could become contaminated if a well or hole were constructed and pumped, depicted on Attachment 1, as follows:

The south 150 feet of the north half of the southeast quarter of the southwest quarter of Section 19 Township 137 N Range 34 W in Meadow Township, Wadena County, Minnesota, and excluding the east 330 feet and the west 330 feet of said north half of the southeast quarter of the southwest quarter of Section 19 Township 137 N Range 34 W in Meadow Township, Wadena County, Minnesota,

f. As used herein, "Declaration" means this Declaration of Restrictions and Covenants, Easement, and Affidavit Concerning Real Property Contaminated With Hazardous Substances.

2. Use Restrictions.

Subject to the terms and conditions of this Declaration and the reservation and covenants contained herein, including amendments and activities approved by the MPCA, Owner hereby declares and imposes the following restrictions ("Restrictions") on the Restricted to prevent a release of or exposure to existing contamination:

a. No unauthorized personnel are allowed inside the fence surrounding the capped hazardous waste cell without notice to and prior approval of the MPCA. No disturbance or alteration of any nature whatsoever, specifically including, but not limited to, walking, driving, digging, grading, excavation, boring, drilling or construction, shall occur on, above, beneath or adjacent to the hazardous waste facility fenced area within the Restricted Area; and

b. No well at any depth for any purpose shall be installed in the Restricted Area or in the Well Restriction Area without notice to and prior approval of the Minnesota Pollution Control Agency.

c. Owner covenants that the Restricted Area shall not be used for any purpose that could result in a release of or exposure to existing contamination or provide an exposure route for any persons, especially sensitive subpopulations such as children and elderly persons. Strictly prohibited uses include, but are not limited to, excavation, farming, residential housing, temporary housing for children, play areas, schools, hospitals, nursing homes, day-care centers, pre- school centers, or other similar purposes. Appropriate uses are those that will not disturb the surface of the soils, such as recreational purposes including, but not limited to, hunting or walking. In addition, a commercial or industrial use may also be appropriate if it complies with all restrictions herein; and

d. No digging or excavation shall be performed in the Restricted Area that exposes ground water (at a depth of approximately 3 to 4 feet during wet periods); and

e. No underground structures or basements shall be constructed in the Restricted Area; and f. No activity or change is allowed that adversely affects the protectiveness of the site response actions such as changes to the water table, surface water drainage, ditches, or infiltration to the water table in such a manner that may affect the ability of the site to remain protective of human health or welfare or the environment or to be remediated; and

g. Some soils may not be acceptable as clean fill; none shall be removed from the Site for use as clean fill or other purpose.

The Restrictions declared and the rights and interests granted under this Declaration of Restrictions shall run with the Property and bind Owner, Owner's successors or assigns, all present or future owners of the Property, and all parties who now or hereafter have or hold any right, title or interest in or to the Property.

Any activity on or alteration of the Restricted Area, or installation of a well in the Well Restriction Area, prohibited by the Restrictions shall not occur without the prior written approval of the Commissioner of the MPCA. The Commissioner's approval may include conditions that tie Commissioner deems reasonable and necessary to protect public health or welfare or the environment, including submission to and approval by the MPCA of a contingency plan for the activity or alteration., and such approval shall not be unreasonably withheld. The Restrictions do not apply to, and no prior approval of the Commissioner shall be required for, activities on that portion of the Property outside of the Restricted Area, including maintenance or repair of existing buildings, structures, underground sewer, water, electrical or telephone services, or installation of fencing and signage, when such activities are not expected to or are not reasonably likely to result in disturbance of or intrusion into soil or ground water within the Restricted Area

Within 60 days after receipt of a written request for approval to engage in any activities subject to the Restrictions, the MPCA shall respond, in writing, by approving such request, disapproving such request, or requiring that additional information be provided. A lack of response from the Commissioner shall not constitute approval by default or authorization to proceed with the proposed activity.

3. Covenants.

Owner hereby covenants that the Property shall not be held, transferred, sold, conveyed, occupied, altered, or used in violation of the Restrictions set forth in Section 2 of this Declaration.

4. Reservations.

Nothing contained in this Declaration shall in any way prohibit, restrict or limit Owner, from fully conveying, transferring, occupying or using the Property for all purposes not inconsistent with the Restrictions. 5. Duration; Amendment.

In accordance with Minn. Stat. § 115B.17, subd. 15 and Minn. Stat. § 84C.02(c), this Declaration and the covenants, grants, easement, and Restrictions herein are unlimited in duration unless terminated, released and/or amended with the written consent of the Commissioner or her successor, such consent not to be unreasonably withheld. Notwithstanding the foregoing, this Declaration and the covenants, grants, easement, and Restrictions set forth herein may be terminated, released and/or amended upon the occurrence and satisfaction of the following conditions:

a. soil and ground water sampling is conducted on the Restricted Area with prior written notice to and in accordance with a plan approved by the MPCA, such approval not to be unreasonably withheld; and

b. based on such samples the MPCA "determines that contaminants in the soil and ground water located within the Restricted Area no longer pose a potential threat to human health or welfare or the environment.

This Declaration and the covenants, grants, easement, and Restrictions herein may be amended if the MPCA finds that the conditions set forth in Section 2 of this Declaration are inadequate to protect public health or welfare or the environment as set forth in the ROD and ESD.

If Owner and the Commissioner agree to amend this Declaration, or if the Commissioner decides to terminate or release this Declaration, the Commissioner shall, within 60 days after receipt of written request from the owner of the Property, execute and deliver to Owner an instrument in recordable form, amending, terminating, or releasing this Declaration.

6. Grant and Conveyance to MPCA: Easement.

Subject to the terms and conditions of this Declaration, Owner grants and conveys to the MPCA and its successors an Easement with such rights and interest in the Property as are necessary and convenient to enforce the Restrictions set forth in section 2 of this Declaration, including the right of the MPCA, its employees, its agents, contractors and subcontractors, upon reasonable notice to the then-current owner and at reasonable times, to enter from time to time upon the Property to inspect the Property, verify compliance with the Restrictions, and permit the Commissioner and employees, agents, and contractors of the MPCA to enter the property and take environmental response actions (as that term is defined in Minn. Stat. §115B.02 subd. 18) as the Commissioner deems necessary to carry out his duties and authorities under the Act., including access to existing response action equipment and structures, installation or removal of structures and equipment, maintenance of the capped hazardous waste cell, and sampling, including ground water monitoring wells and other samples. The Easement is subject to the following covenants and conditions:

a. Owner shall not take or allow others to take any action that interferes with environmental response actions of the Commissioner.

b. Owner shall allow access pursuant to this Easement conditioned only upon presentation of proper identification.

This Easement and the Covenants contained herein shall run with the land and shall be binding on all persons and entities who shall come into ownership or possession of the Property as described herein.

7. Emergency Procedures.

Owner covenants that the procedures set forth below shall be followed when an emergency requires immediate excavation of contaminated soil in the Restricted Area(s) to repair utility lines or other infrastructure on the Property, or to respond to other types of emergencies (e.g., fires, floods):

a. notify the Minnesota Duty Office immediately of obtaining knowledge of such emergency conditions; the 2004 phone numbers for the Duty Officer are 1-800-422-0798 (Greater Minnesota only); (651) 649-5451 (Twin Cities Metro Area and outside Minnesota); fax (651) 296-2300 and TDD (651) 297-5353 or 800-627-3529.

b. limit disturbance of contaminated media to the minimum reasonably necessary to adequately respond to the emergency;

c. undertake precautions to minimize exposure to workers, occupants and neighbors of the Property to contaminated media (e.g. provide appropriate types of protective clothing for workers conducting the excavation, and establish procedures for minimizing the dispersal of contaminated dust); and

d. require that the utility or public service prepare and implement a plan to restore the Property to a level that protects public health and the environment. Submit to the MPCA a copy of such a plan for review and approval prior to implementation of the plan. Submit a follow-up report after the plan is implemented so that the MPCA can determine whether protection of the public health and the environment has been restored. 8. Disclosures.

The Restrictions set forth in Section 2 and the Easement set forth in Section 6 of this Declaration shall be incorporated in full or by reference into all instruments conveying an interest in and/or a right to use the property (e.g., easements, mortgages, leases).

-+-V In Witness Whereof, this instrument has been executed on this |^) day of , 2004.

HAZEL V. RITARI

Hazel V. Ritari Owner

State of Minnesota ) )SS. County of Lt

Hazel V. Ritari, being duly sworn by me under oath, has signed and acknowledged the foregoing instrument before me this ) pT// day of fi/o)/p\m\o-&S~ , 2004.

otary Public

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SURFICIAL AQUIFER IKEL LJKC •.)VF=Mf<- ElLCTPICt, Li'.'E

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AftilAS Jf RELWJNING SOIL CCN'IAMINAIION

SOIL CONTAMINATION.REMAINING UNtJFRNEATH aUILE^NGS BASED ~-«NVISU«. OBSERVATION WITH NEW~CONCRETE aOORS

! BAY WEST Inc. SERVICES ST. PAUL. 15588.04 7 62 56428.70 1-5-6 (COMBINED) 2089.95 CU. YDS 3210.14 3.63 II 652.81 2 431.59 CU. YDS. RITARI POST AKO POLE- SEBtKA 614-2.90 4.0? i. 3 914.59 CU. YDS. 3593.89 3.7C 13513.03 500.O CU. YDS. ;;ri.f AREAS OK REMAINING '^OIL CON1AJJINA[ION 33.12 3.20 105.98 3.93 CU. YDS. 030473 B21 lotc i-=50' FIGURE t 4

ABOVE WATER TABLE Accepted on behalf of

Minnesota Pollution Control Agency Pursuant to Minn. Stat. § 115B.17, subd. 15

Timothy K. Serkenbach Director Majors and Remediation Division Delegate of the Commissioner of the Minnesota Pollution Control Agency State of Minnesota ) )SS. County of Ramsey )

-p The foregoing instrument was acknowledged before me this / / day of 2004, by Timothy K. Scherkenbach, under the authority of Sheryl A. Corrigan, the Commissioner of Minnesota Pollution Control Agency, a Minnesota body politic, on behalf of the State of Minnesota.

Notary Public

OAtLA.SKOWRONEK NOTARY PUBLIC - MINNESOTA AC: #!309458-vl MY COMMISSION EXPIRES MNUARV 31 . 2005